Wishart v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 107 /99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN KERRY MICHAEL WISHART of Masterton Appellant (Appeal No. DCA 509/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at WELLINGTON on the 26th day of April 1999 APPEARANCE/COUNSEL Appellant in person C B Grover for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant has unreasonably failed to supply the respondent with authorisation for release of medical records in order to satisfy his claim that he now suffers tendonitis in addition to his claim for chemical sensitivity which has been accepted by the respondent. The appellant lodged a claim in May 1991 stating that he suffered chemical sensitivity which arose out of and in the course of his employment. The claim was 2 accepted by the respondent which paid various entitlements to the appellant. Subsequent medical certificates indicated that the appellant developed tendonitis when undertaking alternative duties at his work. In November 1993 the respondent ceased payment to the appellant but this was reinstated after a review hearing. The appellant's General Practitioner issued a certificate on 30 June 1997 recommending a specialist review of the appellant's elbow condition. This recommendation has been repeated in two further certificates in September 1997 and March 1998. In April 1998 an individual rehabilitation plan was drafted at a meeting with the appellant with the object of obtaining specialist opinion as to the effect of chemical toxicity and the claim in respect of elbow tendonitis. The appellant signed the plan on 20 May 1998 but in a submission to me at the appeal hearing indicated that he did this reluctantly because he thought it was the only way for his case to be fully investigated. On 4 May 1998 the respondent requested the appellant to complete a consent form to enable it to obtain the necessary information from doctors and specialists in order to consider his claim. The appellant notified the respondent that he would not sign the release until he could obtain a copy of the notification to the health department and the result of the laboratory smear test which was done at the time his claim was lodged. The file indicates that neither of these documents is now available. As a result of the respondent declining to complete the consent form the payment of further compensation was ceased. The appellant applied for a review of that decision. The appellant made submissions to the Review Officer that he was not prepared to complete the consent form until the information in relation to the swab and the health department notification were available. In addition, the appellant submitted that he was aware of cases in which he understood the respondent had obtained further medical opinions which led to the cessation of compensation. He said that he did not wish that position to apply to him. The Review Officer rejected both the appellant's submissions and considered that he had unreasonably failed to comply with a proper request from the respondent. The appellant made similar submissions to me as he had made to the Review Officer. His concern appears to be that he feels that the respondent is endeavouring to obtain a report which will disqualify him from continued payment of compensation. Ms Grover submitted that in the circumstances, while the appellant's General Practitioner has certified that he suffers tendonitis in addition to the chemical sensitivity for which the respondent had already granted cover, it was reasonable that he should now provide the necessary consent form so that the respondent can investigate the tendonitis issue. At the appeal hearing the appellant indicated to me that he considered that the health department notification and the report on the original swab should be available to enable a proper assessment to be made. However, as I indicated to him the claim for chemical sensitivity has been accepted by the respondent and the issue 3 now raised by the General Practitioner is the issue of tendonitis. The appellant was reluctant to submit himself to Dr Keir Howard who had been recommended by the respondent to investigate the claim. I suggested to him that if he was prepared to sign the consent form then the respondent might consider referring him to both Dr Howard and to either Professor W Glass or Dr W E D Turner, both of whom had originally examined the appellant. He conceded that if the respondent was prepared to do that he would consider completing the necessary consent form. While that is not an issue for the Court, I suggested it as a way of overcoming the apparent impasse between the appellant and the respondent. However, as I indicated to the appellant, the only issue before me is whether he has unreasonably withheld his consent for the release of the necessary medical information. I consider that the decision of the Review Officer was correct and that it should be upheld. The appeal is dismissed. DATED at WELLINGTON this 30th day of April 1999 A W Middleton District Court Judge dca509-98.doc (nr)